Beutel v. Fergusson

Filed 10/26/06 Beutel v. Fergusson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Scott Beutel, a real estate broker, was a dual agent for both the buyer and the seller in the sale of residential property in Carmel. Beutel subsequently acquired title to the property and sued the seller, Ruth Barker, for breach of contract and fraud due to alleged misrepresentations by Barker about the condition of the property. After Barker passed away, respondent, the executor of Barker’s estate, obtained summary judgment on the grounds that Beutel was not a party to the real estate contract between Barker and the buyer and that Barker did not make any representations that were intended to induce Beutel to buy the property. The court also awarded the executor $16,837.50 in attorney fees.

On appeal, Beutel contends the court erred in granting summary adjudication of the fraud cause of action and hence the summary judgment because this case involves indirect fraud or deception, which does not require contractual privity. He alleges that under the Restatement Second of Torts, section 533, he was not required to prove that Barker intended that her misrepresentations or concealment be relied on by Beutel. We conclude that this is not a case of indirect deception within the meaning of section 533 and that the court did not err in granting summary judgment. We also affirm the trial court’s order awarding attorney fees to the executor.

Facts

On May 31, 1999, Noel Beutel, a real estate agent with Ocean Avenue Realty (OAR), met with Ruth Barker, an 86-year-old homeowner. That day, Barker signed an exclusive listing agreement with OAR to sell her home at 26169 Atherton Avenue in Carmel. The agreement provided that the house would be listed for $450,000.

At that meeting, Noel Beutel filled out a Real Estate Transfer Disclosure Statement (RETDS) on a standard California Association of Realtors (CAR) form. The RETDS form inquired, among other things, whether the seller was aware of “[a]ny settling from any cause, or slippage, sliding, or other soil problems” or “flooding, drainage or grading problems.” The response to both inquiries was “No.” Beutel dated the RETDS June 1, 1999, reviewed it with Barker, and had Barker sign it. On June 13, 1999, Noel Beutel signed the “Agent’s Inspection Disclosure” portion of the RETDS and noted: “Roof is over 20 years old. House & yard is [sic] full of debris.” In 1999, Barker’s house was in a “state of total disrepair.” There were overgrown weeds in the yard. Garbage was “strewn about” inside the house and there was a “strong urine odor.”

At the time of the transaction, Noel Beutel’s son, Scott Beutel, owned OAR. Scott Beutel[1] is both a licensed real estate broker and a licensed general contractor. He owns Coastal Construction as a sole proprietorship. The company does “cosmetic remodel[ing].” OAR found a buyer, Lora Alberti. On June 8, 1999, Alberti and Barker signed a residential purchase agreement that identified Alberti as the “Buyer” and Barker as the “Seller.” The agreement provided that OAR would act as the agent for both Buyer and Seller. The selling price was $420,000. Beutel signed the purchase agreement as real estate broker.

On or about June 13, 1999, Barker signed a “Relationship/Business Arrangement Disclosure” form that stated: “Seller understand [sic] that Ocean Avenue Realty and Coastal Construction are owned by Scott Beutel and that Ocean Avenue Realty will be representing both the buyer and the seller. Seller is aware that there is a romantic relationship between Broker and the Buyer and that Broker may become a principal. The Seller understands that Coastal Construction may be retained/compensated by the buyer to do repairs and remodeling. As advised by broker, seller has met and reviewed the offer with her attorney, Sal [sic][2] Weingarten.”

Beutel prepared the purchase agreement. At the time, it was “up in the air” whether he would also be a buyer. He and Alberti were not sure. Noel testified that Alberti was the buyer.

OAR ordered a termite inspection. The inspection was done on June 15, 1999. The report noted that the “[s]ubstructure area was inaccessible due to lack of crawl clearance under girders, heat ducts and plumbing” and recommended the buyer “[d]ig under girders, heat ducts and plumbing for purpose of further inspection.” The report also noted drywood termites, fungus or dry rot, earth to wood contacts, cellulose debris, and faulty grade levels in various areas of the structure and recommended repairs. Beutel read the termite report before close of escrow. His construction company, Coastal Construction, did the repairs. Barker paid $24,790 out of escrow for the repair work.

Escrow closed on August 4, 1999. All of the escrow documents that were in evidence listed Alberti as the buyer and Barker as the seller.

After close of escrow, the property was transferred a number of times within a few months. The initial grant deed shows a transfer of ownership from Barker to Alberti. The deed was recorded on August 10, 1999. That same day, Alberti recorded an interspousal transfer grant deed executed by her former husband in connection with a property settlement agreement or dissolution proceedings. On October 22, 1999, Alberti recorded a deed transferring her interest in the property to “Lora L. Alberti, Trustee of the Lora L. Alberti Living Trust.” On January 20, 2000, Alberti recorded another deed, transferring the property from the trust to “Lora L. Alberti and Larry R. Shumaker, as joint tenants with right of survivorship.” The following day, Beutel recorded a deed in which Alberti transferred the property to Beutel. Although Alberti signed that deed on September 21, 1999, it was not recorded until January 21, 2000. In June 2000, Alberti, individually and as trustee for the Lora L. Alberti Trust, Larry R. Shumaker, and Alice Shumaker quitclaimed their interests in the property to Beutel. The deed contains the notation: “Removing co-signers interest.”

Beutel alleges he moved into the property shortly after it was sold to Alberti. After the first rain, the master bedroom was flooded and the floor furnace vent was overflowing with water. Beutel cut a hole in the bedroom floor to gain access to the area underneath the house that had been inaccessible because of duct work and found water flowing in canals that had been cut by the flowing water. Beutel claims the canals undermined the concrete perimeter of the foundation. He claims that Barker knew about the water problem when she sold the property to Alberti and that the neighbors had threatened to sue Barker because of water intrusion from her property.

Procedural History

I. Pleadings

Beutel filed suit against Barker in August 2001, alleging breach of contract and fraud. Beutel contended Barker breached the contract and committed fraud by failing to use reasonable skill and care in discovering defects in the property and by failing to disclose or concealing material facts affecting the property. He alleged he was a party to the contract between Alberti and Barker and that he relied on Barker’s statements in the RETDS when he purchased the property.

Beutel served his complaint on Barker on August 14, 2001. She did not answer. In April 2002, Beutel took Barker’s default and obtained a default judgment for $29,380.

Barker was under conservatorship when Beutel took her default.[3] In August 2002, Barker’s conservator successfully moved to set aside the default and the default judgment. Barker filed her answer in December 2002. Barker died on May 25, 2003. Carroll Fergusson, the executor of Barker’s estate (Executor), filed an answer on August 29, 2003.

II. Motion for Summary Judgment

In November 2003, Executor filed a motion for summary judgment or, in the alternative, summary adjudication. In the motion, Executor argued that Beutel could not state a cause of action for breach of contract because he was not a buyer or a party to the contract. She argued that Beutel could not state a cause of action for fraud because he was not a transferee under the transfer disclosure laws. She asserted that the RETDS had been prepared by Beutel’s mother on behalf of Beutel’s own real estate company. Executor argued that Barker had no duty to disclose to Beutel because he was not the buyer.

The hearing on the motion was scheduled for January 30, 2004. Beutel’s opposition to the motion was due on January 16, 2004. (Code Civ. Proc., § 437c, subd. (b)(2).) On January 20, 2004, Beutel, who was representing himself, asked for a continuance of the hearing to conduct further discovery. Opposing counsel stipulated to a continuance and the court continued the hearing to February 27, 2004.

Beutel did not file any written opposition to the motion for summary judgment. He appeared at the continued hearing on the motion and requested a further continuance, arguing that Executor had not responded to the discovery in time for Beutel to prepare opposition and that the Executor’s discovery responses were not proper and contradicted the moving papers. Executor’s counsel argued the facts were undisputed and nothing in the discovery responses had anything to do with the motion. He refused to stipulate to a further continuance.

The court denied Beutel’s request for a continuance. The court granted summary adjudication of each cause of action and thus granted the motion for summary judgment. On the breach of contract action, the court found that the purchase agreement was between Alberti and Barker, that Beutel signed the contract as a broker, and that the agreement specifically provided that the brokers were not parties to the contract. On the fraud cause of action, the court found that since Alberti purchased the property, Barker had no duty of disclosure toward Beutel. The court also found that Beutel’s name did not appear on the grant deed signed by Barker.

III. First Motion for Reconsideration

On March 17, 2004, Beutel filed a motion for reconsideration on the grounds that Executor had not responded to discovery in a timely manner, that Executor had delayed service of her discovery responses until after Beutel’s opposition to the motion was due, that Executor misrepresented material facts, that Executor unreasonably refused to allow discovery, and that there were triable issues of material fact that precluded summary judgment. Beutel argued that Executor’s discovery responses were evasive and her objections were not meritorious. Beutel asserted that Executor’s bad faith discovery tactics prevented him from filing opposition and that Executor’s discovery abuse was a new fact that merited reconsideration. Beutel’s moving papers included a memorandum of points and authorities, a proposed separate statement, and evidence in opposition to the motion for summary judgment.

Beutel’s papers in opposition to the motion for summary judgment did not rely on the Executor’s responses to the discovery that Beutel propounded after the summary judgment motion was filed. In his memorandum of points and authorities in opposition to the motion for summary judgment, Beutel argued that he was a third party beneficiary of the contract between Barker and Alberti. Citing the Restatement Second of Torts, section 533, Beutel also argued that a victim of a misrepresentation need not be in privity of contract with the party making the misrepresentation to state a cause of action for fraud.

Executor opposed the motion for reconsideration, arguing that it was untimely, that there were no new facts, circumstances, or law that merited reconsideration, and that Beutel made no effort to explain why these materials had not been submitted earlier. The court denied the motion on the ground that there were no new or different facts, circumstances or law.

IV. Renewed Motion for Reconsideration

On May 20, 2004, Beutel filed a renewed motion for reconsideration based on a newly discovered witness who would testify: (1) that Barker had said she was selling the house to Beutel and (2) that Barker knew the house was subject to flooding when she sold the house to Beutel. The motion was scheduled for hearing on June 11, 2004.

The court entered summary judgment for Executor on May 25, 2004. The court subsequently denied the renewed motion for reconsideration on the grounds that it had lost jurisdiction after entry of judgment, that the evidence Beutel relied on was inadmissible hearsay, and that Beutel had presented no new or different facts.

V. Motion for Attorney Fees

In March 2004, Executor filed a motion for attorney fees based on attorney fee provisions in the purchase agreement and the listing agreement. She asserted that a party may obtain fees under Civil Code section 1717 when the party prevails on the ground that the contract was non-existent or unenforceable.

Beutel did not file written opposition to the attorney fees motion. He appeared for the hearing and told the court that an attorney had agreed to substitute into the case for him. The court continued the hearing for three weeks to allow Beutel’s counsel time to oppose the motion.

The attorney never substituted in for Beutel. Beutel did not file written opposition to the motion or appear at the continued hearing of the motion. The court granted the motion and awarded Executor $16,837.50 in attorney fees.

Discussion

Beutel appeals the summary judgment and the order on the attorney fees motion. He does not challenge the court’s rulings on the motions for reconsideration. Beutel does not challenge the court’s order summarily adjudicating the contract cause of action. His arguments on appeal are limited to the fraud cause of action. We shall therefore limit our discussion to the summary adjudication of the fraud cause of action and the attorney fees order.

I. Standard of Review for Summary Judgment Motion

We review an order granting summary judgment de novo, considering all the evidence set forth in the moving and opposition papers, except that to which objections have been made and sustained. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, in most cases, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887.) In this case, our analysis stops at the second step, since Beutel did not file written opposition to the motion for summary judgment and does not contest the orders on the motions for reconsideration that effectively barred consideration of his opposition to the summary judgment motion.

A summary judgment motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the “action has no merit or that there is no defense” thereto. (Code Civ. Proc., § 437c, subd. (a).) A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 853-854.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) Material facts are those that relate to the issues in the case as framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67 (Juge).)

The moving party, Executor, bears the initial burden of making a prima facie showing that there are no triable issues of material fact and that she was entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850.) Executor’s burden is not affected by Beutel’s failure to controvert material facts or file opposing declarations and evidence. The court may not grant the motion unless it first determines that the moving party has met its initial burden of proof. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086.)

In ruling on the motion, we must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.) In performing our de novo review, we view the evidence in a light favorable to the losing party, liberally construing his evidentiary submission while strictly scrutinizing the moving party’s own showing and resolve any evidentiary doubts or ambiguities in the losing party’s favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)

II. Propriety of Granting Summary Judgment

We begin by reviewing the allegations of the fraud cause of action in Beutel’s complaint. Beutel used a Judicial Council form designed for pleading fraud causes of action. (Judicial Council Forms, form 982.1(23).) However, the complaint Beutel filed with the court is incomplete in that it is missing the first page of the fraud form complaint, wherein the plaintiff specifies the alleged fraud, misrepresentation or concealment. However, the fraud cause of action incorporates the other paragraphs of the complaint by reference. In his breach of contract cause of action, Beutel alleged that Barker failed to disclose and concealed material facts affecting the property when she completed the RETDS and that Beutel relied on the statements in the RETDS when he purchased the property. In his fraud cause of action, he alleges Barker concealed material facts and misrepresented the condition of the property with the intent to induce Beutel to purchase the property. The complaint does not provide any factual detail regarding the manner in which Barker allegedly misrepresented the condition of the property.

The elements of a cause of action for fraud are: (1) a misrepresentation (a false representation, concealment, or nondisclosure); (2) knowledge of the falsity of the misrepresentation; (3) an intent to defraud or induce reliance; (4) justifiable reliance; and (5) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.)

In her summary judgment motion, Executor challenged Beutel’s cause of action for fraud by arguing that Beutel could not state a cause of action for fraud under the transfer disclosure laws because Beutel was not a transferee and he could not state a common law cause of action for fraud because there was no evidence that Barker had a duty to disclose anything to Beutel, since he did not buy the house from Barker. The court concluded that since Barker sold the house to Alberti, she had no duty of disclosure to Beutel under the transfer disclosure law. Essentially, the court held that since Beutel did not buy the house from Barker, Beutel cannot show that Barker had an intent to defraud Beutel or induce reliance by Beutel, which relate to the third element of a fraud cause of action.

On appeal, Beutel contends that his claim is an action for indirect fraud or deception and that such an action does not require contractual privity. He asserts that the representations in the transfer disclosure statement were made to all potential transferees, and not just Alberti. Beutel relies on the Restatement Second of Torts, section 533 (section 533) and Geernaert v. Mitchell (195) 31 Cal.App.4th 601 (Geernaert).[4]

To be liable for actionable fraud, the defendant must intend his or her representation (or concealment) be relied upon by a particular person or persons. However, it is also recognized that the defendant will not escape liability if he or she makes a misrepresentation to one person intending that it be repeated and acted upon by the plaintiff. Likewise, if the defendant makes the representation to a particular class of persons, he or she is deemed to have deceived everyone in that class. (Geernaert, supra, 31 Cal.App.4th at p. 605.)

Section 533 provides: “The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved.” (§ 533, pp. 72-73, italics added.) This principle, known as indirect deception, has been recognized in a number of California cases. (Geernaert, supra, 31 Cal.App.4th at pp. 606-607 citing Varwig v. Anderson-Behel Porsche/Audi, Inc. (1977) 74 Cal.App.3d 578 (Varwig) and Barnhouse v. City of Pinole (1982) 133 Cal.App.3d 171 (Barnhouse); see also Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1548-1549 (Shapiro).) Beutel contends that the “reason to expect” element of indirect deception has been satisfied in this case because Barker knew Beutel had a romantic relationship with Alberti and Beutel “may become a principal” in the sales transaction.

The plaintiff in Varwig bought a car from a wholesaler who claimed to have clear title. The wholesaler acquired the car from the defendant car dealer who had misrepresented the state of title. When the car was repossessed, the plaintiff sued the car dealer for fraud. The dealer obtained summary judgment on the ground that he had no dealings with the plaintiff. The Court of Appeal reversed. Citing section 533, the court noted that the car dealer was on notice that the wholesaler intended to sell the car to the consuming public and thus his representation regarding title was “in law an indirect misrepresentation to plaintiff, who purchased the car in reliance upon [the wholesaler’s] repetition of the representation.” (Varwig, supra, 74 Cal.App.3d at p. 581.)

In Barnhouse, a developer of tract homes failed to disclose the existence of seeps, springs and slides near the property as well as inadequate repair of prior slide damage to the initial buyer of a house in the subdivision. (Barnhouse, supra, 133 Cal.App.3d at p. 189.) The plaintiff bought the house several years later from the initial buyer. Citing section 533, the court held that the plaintiff could sustain an action for fraud against the developer. After noting that an action for deceit does not require privity of contract, the court stated: “Here, the jury could have inferred that [the developer] failed to make the initial disclosures with the intention that subsequent purchasers would also act in ignorance. [Citation.] It was foreseeable that in a development of relatively inexpensive suburban tract homes, some would change hands. . . . . . . We find no difficulty in extending the law of deceit to the situation presented here. Although a developer does not know that there will be subpurchasers, it is foreseeable that there will be and that they will be the ones to suffer damage. The developer has every reason to expect that if there are subpurchasers, a nondisclosure about subsurface soil conditions will be passed on to them.” (Barnhouse, at pp. 192-193.) The court stated, “[I]t would be anomalous if liability for damages resulting from fraudulent concealment were to vanish simply because of the fortuitous event of an intervening resale.” (Id. at p. 192.)

In Geernaert, the purchasers of a single-family home sued two prior owners for fraud and concealment regarding significant structural and foundation problems. Defendant Robert Mitchell, who had substantial expertise in construction, owned the house from 1978 until 1982. He sold the house to defendant Mildo Construction. Mildo sold the property to Cynthia Payne in November 1983, who sold the house to the plaintiffs eight months later. The plaintiffs alleged that either Mitchell or Mildo misrepresented or concealed the foundation problems. The trial court sustained Mitchell’s and Mildo’s demurrers without leave to amend on the ground that these defendants had not made any misrepresentations or concealed information from the plaintiffs. (Geernaert, supra, 31 Cal.App.4th at pp. 603-604.)

The appellate court concluded that the complaint stated facts that would support a cause of action for fraud and concealment under section 533. The court stated: “It is alleged that each defendant either misrepresented or failed to disclose known material facts regarding soil subsidence and structural problems with the house when selling it to his purchaser, and that each defendant either intended or expected that the misrepresentations would be repeated and/or the nondisclosures be transmitted to plaintiffs. Mildo . . . , a corporation which quickly turned around and sold the house presumably for commercial gain, had special reason to expect the fraud to be transmitted to someone like plaintiffs, who purchased it less than a year after its sale to Payne. Although Mitchell was two sales removed from plaintiffs, it is alleged that he used his construction expertise to take extraordinary measures to conceal the true condition of the property and therefore knew there was a strong likelihood that the deception would be passed on to a subsequent buyer.” (Geernaert, supra, 31 Cal.App.4th at p. 608.)

The Geernaert court criticized language from Barnhouse that equated “ ‘reason to expect’ “ with “ ‘foreseeability.’ “ The court observed that under “the more general section 531, the ALI carefully distinguishes the concept of foreseeability with ‘reason to expect,’ making clear that the latter term bears more similarity to actual intent to cause third party reliance than it does to ‘foreseeability.’ ‘Virtually any misrepresentation is capable of being transmitted or repeated to third persons, and if sufficiently convincing may create an obvious risk that they may act in reliance upon it . . . . This risk is not enough for the liability covered in this Section. The maker of the misrepresentation must have information that would lead a reasonable [person] to conclude that there is an especial likelihood that it will reach those persons and will influence their conduct.’ (Rest.2d Torts, supra, § 531, com. d, at p. 68, italics added.)” (Geernaert, supra, 31 Cal.App.4th at p. 607.) The court explained, “In Barnhouse and Varwig the defendants were commercial sellers whose knowledge that the recipient of their deception would pass it on to subpurchasers was fairly apparent. In private real estate transactions ‘reason to expect’ becomes more difficult to establish. As the ALI comment points out, ‘[t]here must be something in the situation known to the maker [of the misrepresentation] that would lead a reasonable [person] to govern his [or her] conduct on the assumption that this [transmission to a third party] will occur.’ [Citation.] This would cover cases in which the perpetrator of the fraud actually intends third party transmissions [citations] as well as those in which it may be inferred from the circumstances that the defendant knew the injured party would rely thereon.” (Id. at pp. 607-608.)

The court applied section 533 in Shapiro v. Sutherland, supra, 64 Cal.App.4th at page 1548. In Shapiro, defendant Sutherland was transferred by his employer and sold his home to a relocation management company that sold the house to the plaintiff. Prior to the initial sale, Sutherland signed a RETDS that falsely stated that he was unaware of any neighborhood noise problems. The court held that the plaintiff could rely on this misrepresentation to state a cause of action for fraud against Sutherland, even though the misrepresentation was not made directly to him. The court emphasized that when the defendant made the misrepresentation, it was obvious that the relocation service intended to resell the property as quickly as possible and that since the relocation service had no knowledge of the property, the defendant have every reason to expect the relocation service would deliver the RETDS to the ultimate buyer.

We are not persuaded that this is a case of indirect deception within the meaning of section 533. Unlike the defendants in Barnhouse, Varwig, and Geernaert, Barker was not a commercial seller who had reason to expect that the property would be quickly resold for commercial gain. Unlike Mitchell in Geernaert, there was no evidence that Barker had expertise in construction or that she used that expertise to hide defects in the property. There was no evidence that Barker, like the defendants in Shapiro and Geenaert, knew the property would be subject to a quick resale. There was no evidence that Barker had any special training or expertise that related to construction or real estate. It was undisputed that she had lived in the house for over 20 years. Nothing in the record suggests this was anything other than a sale between private parties. As the court explained in Geernaert, “ ‘reason to expect’ “ becomes more difficult to establish in cases such as this involving private real estate transactions. (Geernaert, supra, 31 Cal.App.4th at p. 608.)

Moreover, there was no evidence that Barker intended the representations in her RETDS to be communicated to Beutel to influence him to buy the property. Nothing about the circumstances of this case allows the trier of fact to infer that Barker knew Beutel would rely on the disclosure in the RETDS to purchase the property. Beutel was not a buyer when Barker signed the RETDS. Although he subsequently disclosed that he “may become a principal,” that did not occur. At all times, there was only one buyer: Alberti. At the close of escrow, Beutel was still the broker, and not a buyer.

In summary, Executor met her initial burden of showing that Barker intended that her representations be relied on by Alberti, the buyer, and that Beutel was the broker, not a buyer. As stated above, we conclude that the indirect deception rule does not apply under the circumstances of this case. Beutel did not oppose the motion or present any evidence that created a triable issue with regard to these issues. We therefore conclude the trial court did not err when it granted summary adjudication of the fraud cause of action and summary judgment.

III. Attorney Fees

Beutel contends the trial court erred in awarding Executor attorney fees because the contract at issue was the RETDS and the RETDS did not contain an attorney fees clause.

Beutel did not raise this issue below. In fact, he failed to file any written opposition to the motion for attorney fees, even after he was given a three-week extension of time to allow counsel to substitute into the action and file opposition. Moreover, he did not appear at the continued hearing of the motion.[5]

Generally, an appellate court will not reverse for procedural defects or erroneous rulings that could have been, but were not, challenged below. Forfeiture will be implied where the error urged on appeal was not raised in the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185.) Based on Beutel’s complete failure to file opposition to the attorney fees motion or appear at the hearing of the motion, we conclude that he has forfeited any claim of error.

In his reply brief, Beutel argues that he has not forfeited his claim of error since his appeal presents an issue of law based on undisputed facts. In such cases, an appellate court has the discretion to address the issue even though it has not been raised in the trial court. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.) The decision whether to address the issue or find a forfeiture is discretionary with the appellate court. Under the circumstances of this case, we conclude that Beutel has forfeited the issue. As the court explained in In re Aaron B. (1996) 46 Cal.App.4th 843, 846, “[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.” (Internal quotation marks omitted.)

Disposition

The summary judgment and the attorney fee order are affirmed.

McAdams, J.

WE CONCUR:

Rushing, P.J.

Mihara, J.

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[1] Hereafter, for ease of reference, we shall refer to Scott Beutel as “Beutel” and Noel Beutel as “Noel.”

[2] Documents in the record indicate that Saul Weingarten was Barker’s attorney.

[3] The court appointed a temporary conservator of Barker’s person and estate on December 18, 2001. On March 5, 2002, the court appointed a conservator. The court found that Barker had dementia, that she was unable to provide for her physical needs, that she was substantially unable to manager her financial resources or to resist fraud or undue influence.

[4] Beutel did not raise these issues below, since he did not file opposition to the motion.

[5] Beutel did not appear when the hearing of the motion was called. Counsel for Executor did appear. After the court ruled on the motion and counsel for Executor left the courtroom, Beutel appeared and attempted to argue the motion. The court advised Beutel that its ruling would stand and that he would have to file a noticed motion to contest the ruling in the trial court.